Many properties have restrictive covenants included in their title. These restrict what can be done at the property.
If a restrictive covenant is breached, then it is open to the person with the benefit of the covenant to bring enforcement action.
What is a restrictive covenant?
A restrictive covenant is a clause included in a property’s title that restricts an occupier of a property in some way. Examples include:
- Not to add extensions to the front of a building
- Not to add extensions or outbuildings above a certain size or height
- Not to run a business from the property
- Not to plant hedges or trees at the front of a property
- Not to play music or an instrument at a property after a certain time
- Not to store a caravan at the property
New build properties in particular tend to include a large number of restrictive covenants. These are intended to ensure that the appearance of an estate is not altered and that those living there are protected from having to deal with unwanted noise or buildings.
Restrictive covenants apply to the land, not the owner, meaning that they remain in existence even when a property is sold.
Enforcing restrictive covenants
The person with the benefit of the restrictive covenant can take action to enforce any infringements. In respect of a new property, this will generally be the builder or a management company, if the benefit has been transferred.
In respect of a leasehold property, the landlord will be able to enforce restrictive covenants.
If a restrictive covenant has been breached, it is open to you to request that the person with the benefit of the covenant takes action to enforce it.
To be enforceable, a restrictive covenant must not be:
- Ambiguous or uncertain
- Prohibited by competition law
- Contrary to public policy
- Assigned to a third party
In respect of a new estate, you can ask the builder to take action to enforce a covenant. In reality, they may only be interested in doing this if they are still in the process of selling properties there. Once they have finished developing the site and they have no more plots to sell, they will have little interest in bringing legal action.
If they are still active at the site, they may send a letter to the person breaching the covenants, asking them to rectify matters. Often, this is enough to resolve the situation.
If the restrictive covenant is in respect of a flat, you generally have the right under the terms of the lease to ask the landlord to enforce covenants against other flat owners.
If you own the benefit of a restrictive covenant, then you can bring legal action yourself to enforce it. It is generally advisable to try and resolve matters by negotiation initially.
This information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances.